In Re The Marriage Of Jennifer Schorsch, And Keith Schorsch ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of: No. 85268-0-I
JENNIFER TISDEL SCHORSCH, DIVISION ONE
Respondent, UNPUBLISHED OPINION
and
KEITH MARTIN SCHORSCH,
Appellant.
FELDMAN, J. — Keith Schorsch appeals various orders issued by the trial
court in a dissolution of marriage proceeding involving his ex-spouse, Jennifer
Schorsch. 1 On appeal, Keith challenges several of the trial court’s findings,
conclusions, and orders regarding spousal maintenance, child support, property
division, and the award of attorney fees to Jennifer. We agree with Keith’s
arguments that the trial court erred by (a) ordering the parties to submit child
support disputes to arbitration, (b) imposing seemingly conflicting educational
requirements for the parties’ children to receive postsecondary educational
support, (c) imposing seemingly conflicting termination dates for postsecondary
educational support, and (d) failing to properly assign a value to the Seattle Tennis
1 Because Keith and Jennifer have the same last name, we refer to them by their first names for
clarity.
No. 85268-0-I
Club (STC) membership and include this asset among the community property
divided between the parties. We reject each of Keith’s remaining arguments.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I
Keith and Jennifer met at Harvard Business School in the 1990s and were
married in 1999. After Jennifer graduated, she worked at Starbucks from 1992 to
2000 and attained the position of regional vice president. The couple’s first son,
B, 2 was born in 2000, at which point Jennifer left her job at Starbucks to care for
him at home, which she continued to do after their second son, S, was born in
2002. In 2006, Jennifer began working at Keith’s online health company, Trusera,
until it wound down in 2009. In 2011, Jennifer began another job as the chief
marketing officer at a nonprofit organization, Water.org, and eventually became its
president, earning a salary as high as $267,000. Jennifer’s position at Water.org
was eliminated in November 2021, and she was unemployed when the trial court
entered its final orders in this matter. While the parties’ dissolution of marriage
action was pending, Jennifer applied for a development officer role with Seattle
Children’s Hospital and was a finalist for the position, but she was ultimately not
hired.
After Keith graduated from business school, he worked as an executive at
several companies, including as a manager of finance at US West Cellular, a
division chief financial officer at McCaw Cellular (which later merged with AT&T),
2 To protect the children’s privacy, we use their initial in place of their name.
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and a finance leader and general manager at Amazon. After resigning from
Amazon, Keith founded multiple start-up businesses, including Trusera and an
investment firm, Schorsch Ventures LLC. Between 2010 and 2021, Keith worked
as the chief financial officer (CFO) for several other companies. Outside of work,
Keith served as the chief business officer for the Global Good Fund and served on
the boards of the Seattle Children’s Foundation and the Fred Hutchinson Cancer
Research Center. Most recently, Keith worked as the CFO for RPI Print from
September 2020 to February 2021, where his annual salary exceeded $320,000.
Throughout Keith’s employment history, he has consistently received a six-figure
income.
Throughout his career, Keith has struggled with mental health issues. He
has experienced depression and anxiety since he was in undergraduate school in
the late 1980s, and he has been diagnosed with major depressive disorder and
dysthymia. In 2004, Keith contracted Lyme Disease, which caused “brain fog,”
“memory issues,” and “processing issues.” In the early 2010s, Keith was also
diagnosed with bipolar disorder. Keith underwent electroconvulsive therapy to
treat his depression in 2014. In October 2020, Keith fell down a flight of stairs at
the parties’ home and hit his head against the wall. Keith experienced concussion-
like symptoms as a result of the fall, and he was later diagnosed with a traumatic
brain injury (TBI). At the time of trial, Keith was unemployed.
In December 2020, the parties were “extremely unhappy” and believed they
“should separate” if they “couldn’t figure out a way to be happy.” On February 8,
2021, Keith moved out of the parties’ house in Seattle (the Seattle Home) and
moved into their house on Vashon Island (the Vashon Home). After Keith argued
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with Jennifer and the children on Easter about his aggressive spending of the
parties’ money, Jennifer told Keith she would be pursuing legal separation. The
parties were unable to amicably resolve their differences, and Jennifer filed a
petition for legal separation on July 22, 2021.
After moving to the Vashon Home, Keith spent hundreds of thousands of
dollars from the parties’ primary joint account over Jennifer’s protestations to pay
off his credit card debt, remodel the Vashon Home, and purchase a vast quantity
of personal property (including vehicles, art, furniture, antiques, and other
miscellaneous items) to allegedly start a new business. Keith told the person who
sold him much of this property that he was in a “dispute with his wife” and was
purchasing this property because “she can’t get my money if I spend it all.” Keith
also transferred over $150,000 from the parties’ joint account to his individual
account. In response to Keith’s rapid depletion of the parties’ community funds,
Jennifer transferred $402,000 from the community account into a new brokerage
account in June 2021 and used this account to continue paying the parties’
community expenses, such as the mortgages, taxes, and children’s tuition. By
August 2021, Keith had depleted the $502,000 that Jennifer left in the community
account to about $40,000.
Keith’s mental health began deteriorating in the summer of 2021 after he
stopped taking his prescribed medication. In October 2021, Keith stopped
communicating with his psychologist, Dr. Andrew Benjamin, and in November
2021 he was drinking more and feeling isolated and depressed. At the end of
November, Keith had an “acute manic psychotic break” and was involuntarily
hospitalized until early December 2021. After he was discharged, his psychiatrist,
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Dr. David Dunner, changed his diagnosis to bipolar type 1 disorder and prescribed
mood stabilizers. Jennifer noticed that Keith “was doing well” in early 2022 when
he was receiving medical care and taking his medications.
After a five-day bench trial at the end of 2022, the trial court issued its final
orders on March 27, 2023. Of the total community property approximating $3.5
million, the trial court awarded Keith a 55 percent share “due to his current
cognitive and emotional abilities currently and in the near future.” However, the
trial court treated $644,509 as “a pre-distribution of the community funds” to Keith
due to his waste of the marital community following separation. The court also
denied Keith’s request for spousal maintenance. Additionally, the court ordered
the parties to establish a trust to pay for the children’s postsecondary education
and fund it with $300,000 from the parties’ community property. The trial court
also ordered the parties to pay child support to their two children. Finally, the court
ordered Keith to pay Jennifer attorney fees totaling $75,000 due to his
intransigence and discovery violations during litigation. Keith appeals.
II
Although many of Keith’s arguments are conclusory, unsupported, and/or
incoherent, we have identified various discrete arguments, some of which are
presented in disparate portions of the briefing, and we accordingly address those
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arguments below. We decline to address the remaining arguments, which are not
presented in accordance with the Court’s rules. 3
A. Post-trial submissions
Keith argues the trial court abused its discretion by “considering additional
‘evidence’ without reopening the case” after the trial had concluded. (Emphasis
omitted). We disagree.
“[T]he reopening of a cause for additional evidence is within the discretion
of the trial court and . . . the trial court’s actions in this regard will not be reversed
except upon a showing of an abuse of discretion and prejudice resulting to the
complaining party.” Estes v. Hopp, 73 Wn.2d 263, 270, 438 P.2d 205 (1968). A
court may allow a party to reopen the cause if the court is “confused by the state
of the evidence.” Powell v. Schultz, 4 Wn. App. 213, 215-16, 481 P.2d 12 (1971).
“A trial court is not so helpless that it must decide a controversy upon a record
which is, in the court’s opinion, incomplete for want of available evidence proper
to be received, the admission of which would render the court better able to do
justice between the parties.” Ankeny v. Pomeroy Grain Growers, Inc., 170 Wash.
1, 10, 15 P.2d 264 (1932).
Here, after the trial concluded, the trial court presented drafts of its final
orders to the parties and asked them to “review the draft orders and to be ready to
3 Among other deficiencies, the argument headings and page numbers set forth in the table of
contents and table of authorities do not correspond with the body of the brief. Keith lists 36
assignments of error but fails to elaborate on many of them in the body of his briefs. Keith often
raises the same or similar arguments in piecemeal fashion in different sections of his briefs. Many
of Keith’s arguments fail to cite to the record or legal authority, and Keith cites to exhibits that are
not included in the record on appeal. When Keith does cite legal authority for a proposition, the
authority upon which he relies is often unrelated to that proposition. For virtually all of Keith’s
arguments, he fails to explain how the trial court erred, how he was prejudiced by the alleged error,
or what remedy he is seeking. Finally, neither Keith’s opening brief nor his reply brief contain a
conclusion setting forth the precise relief sought as required by RAP 10.3(a)(7) and (c).
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alert [the court] to scrivener errors, community property which [the court] may have
inadvertently failed to include in the orders and spreadsheet, requests for changes
to the orders based on logistical ease as opposed to substantive reasons, etc.” In
response, Jennifer submitted an updated statement of assets and liabilities
showing the “current balance as of 3/9/2023” for the parties’ community accounts.
Jennifer’s submission also traced $34,931 in these accounts to the sale of certain
items of property that Keith had purchased after the separation date and asked the
court to exclude that amount from the division of community property “to ensure
[Keith] retains 100% of the sale proceeds from the property he purchased.”
Jennifer later filed a supplemental declaration alerting the court that its draft orders
did not include a child support order and suggesting that the court calculate the
parties’ income for child support purposes based on the “average rate of return” of
8.29 percent on the investment assets each party would receive upon dissolution,
given that both parties were unemployed. Following a hearing, the trial court
adopted Jennifer’s proposals. The trial court did not abuse its discretion in
considering this information for the limited purpose of more accurately crafting its
final orders regarding property division and child support.
Additionally, Keith has failed to show prejudice. At trial, Keith did not
seriously dispute the accuracy of Jennifer’s newly submitted information or argue
that he was prejudiced by the court’s consideration of it. Keith fails to make these
showings on appeal as well, and he does not articulate what remedy we should
impose to correct these alleged errors. Instead, his counsel suggested at oral
argument that we apply a newly-fashioned “cumulative error” doctrine and view all
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of the trial court’s rulings skeptically. 4 No case law supports that novel approach,
which is contrary to the established standards that govern our review of trial court
decisions. Thus, even assuming the trial court abused its discretion in considering
this evidence, Keith has not demonstrated the requisite prejudice to warrant
reversal.
Keith argues the trial court’s consideration of this evidence was erroneous
under our holding in In re Welfare of Ott, 37 Wn. App. 234, 240, 679 P.2d 372(1984). In that case, we affirmed the trial court’s denial of a party’s motion to re-
open the cause to allow the party to “retestify concerning his relationship to his
children, his housing arrangements, and other matters.” Id. We declined to find
an abuse of discretion because “[t]here had been extensive testimony” from the
moving party and other witnesses regarding these issues, and the moving party
had “suffered no prejudice” from the denial of the motion. Id. Ott is distinguishable
because the trial court here accepted Jennifer’s submissions to clarify details about
the division of property and calculation of child support. 5
Keith also contends the trial court erred because it did not formally reopen
the cause before considering this evidence, which Keith avers would have allowed
him to raise substantive objections to the evidence. This argument fails because
at no point below did Keith raise the evidentiary objections he now proffers on
4 Wash. Ct. of Appeals oral argument, In re Marriage of Schorsch, No. 85268-0-I (July 12, 2024),
at 1 min., 5 sec. to 2 min., 42 sec. (on file with court).
5 Keith’s reliance on the Maryland Court of Appeals’ decision in Dyson v. State, 328 Md. 490, 500,
615 A.2d 1182 (Md. Ct. App. 1992)—which is nonbinding on our court—is misplaced because it
involved a criminal jury trial. The risk of unfair prejudice in presenting the jury with new evidence
after it has begun its deliberations is far greater than presenting the trial court in a dissolution
proceeding with additional information to more accurately craft its final orders. See Ankeny, 170
Wn. at 10.
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appeal as bases to exclude this evidence, such as lack of authentication, lack of
foundation, hearsay, relevance, and failure to testify under penalty of perjury.
Moreover, the trial court indicated to Keith’s attorney at the hearing that it was
“open to substantive arguments to a limited extent” to address “information
pertaining to the child support order” that the court inadvertently omitted from its
draft orders. Thus, Keith had an opportunity to raise evidentiary objections, yet
failed to do so. For these reasons, we reject Keith’s argument.
B. Spousal maintenance
Keith argues the trial court abused its discretion by declining to award him
spousal maintenance. We disagree.
A party does not have an inherent right to receive maintenance. In re
Marriage of Mueller, 140 Wn. App. 498, 510, 167 P.3d 568 (2007). Instead, a court
in a dissolution proceeding “may” grant maintenance to either spouse “in such
amounts and for such periods of time as the court deems just, without regard to
misconduct, after considering all relevant factors including but not limited to” the
following:
(a) The financial resources of the party seeking
maintenance, including separate or community property apportioned
to him or her, and his or her ability to meet his or her needs
independently . . . ;
(b) The time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find employment
appropriate to his or her skill, interests, style of life, and other
attendant circumstances;
(c) The standard of living established during the marriage
...;
(d) The duration of the marriage . . . ;
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(e) The age, physical and emotional condition, and
financial obligations of the spouse . . . seeking maintenance; and
(f) The ability of the spouse . . . from whom maintenance
is sought to meet his or her needs and financial obligations while
meeting those of the spouse . . . seeking maintenance.
RCW 26.09.090(1). While a trial court is not required to make specific factual
findings on these factors, it must consider each of them in determining whether to
award maintenance. In re Marriage of Anthony, 9 Wn. App. 2d 555, 564, 446 P.3d
635 (2019).
So long as a trial court considers each of these factors, it exercises broad
discretionary powers in determining whether to award maintenance, and we review
this determination for manifest abuse of discretion. In re Marriage of Washburn,
101 Wn.2d 168, 179, 677 P.2d 152 (1984). A trial court abuses its discretion if it
does not base its maintenance ruling “upon a fair consideration of the statutory
factors” listed in RCW 26.09.090. In re Marriage of Crosetto, 82 Wn. App. 545,
558-59, 918 P.2d 954 (1996). “Where the trial court has weighed the evidence,
the reviewing court’s role is simply to determine whether substantial evidence
supports the findings of fact, and if so, whether the findings in turn support the trial
court’s conclusions of law.” In re Marriage of Rockwell, 141 Wn. App. 235, 242,
170 P.3d 572 (2007). In reviewing findings, we view the record in the light most
favorable to the party in whose favor the findings were entered, and we do not
substitute our judgment for the trial court’s, reweigh the evidence, or adjudge
witness credibility. In re Marriage of Kaplan, 4 Wn. App. 2d 466, 479, 421 P.3d
1046 (2018).
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For the reasons that follow, we conclude the trial court did not abuse its
discretion by denying Keith maintenance because it fairly considered each of the
six statutory maintenance factors under RCW 26.09.090(1)(a)-(f).
1. Keith’s financial resources, including separate or community
property apportioned to him, and his ability to meet his needs
independently
The trial court found, “Both parties will have considerably fewer financial
resources than what they were used to during their marriage, but each will receive
assets valued at close to or more than $2 million – an amount that will allow them
to meet their needs independently.” Additionally, the trial court considered that
Keith would receive a “higher distribution of community property”—55 percent of
the parties’ community property as compared to Jennifer’s 45 percent. Substantial
evidence supports these findings. After accounting for the $644,509
predistribution of community property to Keith, the record shows that he received
additional community property worth over $1.5 million and separate property worth
over $270,000.
2. The time necessary to acquire sufficient education or training
to enable Keith to find employment appropriate to his skill,
interests, style of life, and other attendant circumstances
Addressing this factor, the trial court found that “[b]oth parties are extremely
educated, have a past high level of employment, and significant skills. Neither
party needs time to obtain further education or training.” On appeal, Keith argues
this “conclusion is not supported by adequate finding [sic] and not supported by
substantial evidence” because “everyone who testified about [Keith’s] condition
agree[s] [he] needs services and time if he is to become employable.” This
argument fails because Keith conflates receiving “education or training” with
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receiving “services and time” to treat his mental health issues and does not cite
any legal authority suggesting the latter should be considered under RCW
26.09.090(1)(b).
3. The standard of living established during the marriage
As to this third factor, the trial court found, “Both parties will have to readjust
their standards of living that they maintained during the marriage. Still, in light of
the separate and community property each party will be apportioned, each party
will still be able to maintain a high standard of living.” Keith argues on appeal that
the court “did not consider [his] financial obligations it was simultaneously requiring
him to pay like 45% of the children’s $15,300 monthly living and postsecondary
education expenses ($400,000 over the next 6 years) or [Keith’s] modest $7,000
per month in living expenses ($500,000 over the next 6 years).” Keith’s argument
fails because he ignores that a trust funded with $300,000 will be paying the
majority of the children’s expenses, as discussed in part II(C)(1) below. Jennifer
provided estimates at trial indicating that, after accounting for expenses paid by
the trust, the parties will be responsible for paying approximately $2,925 per month
in expenses for the children, of which Keith will be responsible for paying 45
percent—a much smaller figure than Keith claims he will be paying.
4. The duration of the marriage
Regarding this fourth factor, the trial court found that the marriage “extended
for over 20 years” and was “long-term.” Keith appears to concede in his reply brief
that the trial court fairly considered this factor. Nevertheless, Keith’s argument in
his opening brief that “the trial court must consider equalization [of the parties’
future economic circumstances] or it erroneously fails to exercise discretion” fails
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because the case he cites in support of this argument does not discuss spousal
maintenance and is, thus, inapposite. See Rockwell, 141 Wn. App. at 248 (stating
that the trial court’s objective in dividing property when dissolving long-term
marriages “is to put the parties in roughly equal financial positions for the rest of
their lives”). To the extent Rockwell applies to spousal maintenance, Keith’s
argument still fails because we recently distinguished Rockwell in Kaplan, where
we held that “[a]n objective of placing the parties to a long-term marriage in roughly
equal financial positions is not a mandate for trial courts to predict the future, divide
assets with mathematical precision, or guarantee future equality.” Kaplan, 4 Wn.
App. 2d at 475-76 (internal quotation marks omitted). The trial court fairly
considered this factor.
5. Keith’s age, physical and emotional condition, and financial
obligations
Keith argues the trial court “improperly considered” this fifth factor under
RCW 26.09.090(1)(e) because he is “unemployable” due to his mental health
issues. We disagree.
At trial, Keith presented testimony from two experts regarding his
employability. First, Keith elicited testimony from Dr. Richard Adler, his treating
psychiatrist, who performed neuropsychological screening tests on Keith in August
2021 and October 2022. Dr. Adler opined that Keith suffered a TBI that is
contributing to his compromised executive functioning. Dr. Adler testified that while
Keith is not presently employable, he could make significant improvement towards
obtaining employment in a year if he continues receiving treatment and taking his
medications. Second, Keith elicited testimony from Dr. Benjamin, his former
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treating psychologist, that he experienced changes in behavior due to injuries he
sustained following his fall in October 2020 and in a motor vehicle accident in June
2021. These changes include confusion, difficulty looking at screens for extended
periods of time, and difficulty organizing, planning, and problem solving. Dr.
Benjamin agreed with Dr. Adler that Keith has a “degenerative brain disease.” As
for Keith’s employment prospects, Dr. Benjamin opined that Keith is presently
unemployable but could be reemployed in “a couple years.”
In response, Jennifer presented expert testimony from Dr. Craig Beaver,
who, unlike Keith’s experts, is a neuropsychologist specializing in assessing “neuro
cognitive abilities” and rehabilitating individuals with neurological issues, which
includes determining whether “they [are] ready to go back to work or school” and
“what accommodations they need.” Dr. Beaver opined that on a more probable
than not basis Keith has “the capacity to become employed” if he receives
treatment for his mental health issues such as counseling, speech therapy, and
medication. Dr. Beaver estimated that Keith could “begin pursuing vocational
options” within six months after trial. Dr. Beaver disagreed with the claims of
Keith’s experts that he has a “significant neurodegenerative disorder” and
observed that Keith performed “in the average to high average range of abilities”
in neuropsychological exams in 2008 and 2015, during which time he was
employed in well-paying jobs despite experiencing ongoing mental health issues.
In forming his opinions, Dr. Beaver relied on testing performed on Keith in April
2022 by another neuropsychologist, Dr. Myron Goldberg, which indicated that
Keith has “average to well above average ability in most cognitive areas,” that his
cognitive recovery from the TBI he suffered in October 2020 is “quite favorable,”
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and that it is “unlikely” Keith will experience “persistent appreciable declines in his
cognitive functioning” from this injury.
The trial court made several findings regarding Keith’s employability. The
court found “there is substantial evidence that [Keith] has struggled considerably
with mental health issues which have likely interfered with his ability to obtain and
to retain employment in the past two years.” The court “considered [Keith’s] ability
to maintain high levels of employment throughout his multiple bouts of significant
depression over the past few decades.” The court also found that Keith “would
likely not be employable, in any capacity, for the next few months.” But the court
further found, “Based on the totality of evidence, including Dr. Craig Beaver’s
testimony, [Keith] will likely be employable after [] several months but it is unclear
when and what type of employment [Keith] will be able to obtain.” Lastly, the court
stated that Keith “is not currently employable and will likely not be able to obtain
the level of employment he previously had. Nonetheless, the Court cannot
conclude that [Keith] will not be able to obtain some type of employment in the
future.”
Substantial evidence supports these findings. All of the experts agreed that
Keith, while not presently employable, could regain employment in the future if he
continues receiving treatment for his mental health issues. Drs. Adler and
Benjamin testified that it was possible for Keith to regain employment in the future,
albeit on a longer timeframe than Dr. Beaver predicted. At bottom, Keith asks us
to place greater weight on the opinions of his experts than those of Jennifer’s
experts, but this approach runs counter to our deferential standard of review. See
Rockwell, 141 Wn. App. at 248 (“If a trial court’s finding is within the range of the
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credible evidence, we defer.”). On this record, we conclude the trial court fairly
considered Keith’s age, physical condition, and financial obligations in determining
whether to award him maintenance. 6
Notwithstanding the foregoing analysis, Keith claims the trial court showed
“improper disdain for [Keith’s] behavior caused by mental health challenges and
gender” by placing greater weight on its and Jennifer’s own lay opinions of Keith’s
employability rather than the experts’ opinions on that issue. In support of this
assertion, Keith relies heavily on our decision in In re Marriage of Leaver, 20 Wn.
App. 2d 228, 499 P.3d 222 (2021). In Leaver, the trial court awarded maintenance
to husband for two years but declined to award him lifetime maintenance because,
relying on wife’s “lay opinion,” the trial court found that there was “a lot more” he
“could do if he put his mind to it” to find employment. Id. at 240. On appeal, we
held that this decision was not supported by substantial evidence because the trial
court disregarded expert testimony from husband’s psychiatrist and
neuropsychological evaluator, who testified that husband was disabled due to his
depression and anxiety and had poor employment prospects. Id. at 239-40.
Leaver is distinguishable because Jennifer presented expert testimony from
Dr. Beaver, who in turn relied on the opinions of Dr. Goldberg, that Keith could
become employable in the future. Moreover, the trial court’s finding that Keith was
able to testify “articulately, responsively, and comprehensively” at trial was
supported by the opinions of Dr. Beaver, who also watched Keith testify and
6 Jennifer also contends that Keith may be eligible for government benefits such as unemployment
or disability. While the record does not indicate whether and to what extent Keith could receive
such benefits, he does not dispute on appeal that he has not applied for these benefits even though
they could provide another source of income should he continue to remain unemployed due to his
health issues.
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observed that he “presented better than what I expected,” had a “remarkable ability
to pull up facts and dates and information,” and “seemed reasonable and logical”
when testifying. By basing its findings on expert testimony, the trial court did what
Leaver requires. 7
Additionally, Keith argues the trial court, in denying spousal maintenance,
improperly considered his “misconduct” that was the result of “mental health
challenges,” which “may have caused him to engage in behavior the trial court
disdained.” This argument fails because nothing in the trial court’s findings or
conclusions regarding maintenance indicates that it declined to award
maintenance to Keith based on conduct that the court deemed improper. We
therefore reject Keith’s arguments regarding this factor.
6. Jennifer’s ability to meet her needs and financial obligations
while meeting those of Keith
As to this last factor, Keith argues the trial court erred by finding that Jennifer
cannot meet her needs and financial obligations if ordered to pay maintenance to
Keith. We disagree.
In determining spousal maintenance, “a trial court must consider a
requesting spouse’s need for support.” In re Marriage of Wilcox, 553 P.3d 614,
617 (Wash. 2024). Here, the trial court made several findings regarding Jennifer’s
efforts and ability to obtain employment. The trial court found that Jennifer, after
losing her job at Water.org, “has acted in good faith when seeking new
employment but, as of the time of trial, has been unsuccessful. Due to her active
7 Keith’s reliance on our unpublished opinion in In re Marriage of Rich, No. 83365-1-I (Wash. Ct.
App. June 20, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/833651.pdf, is
misplaced for the same reason.
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but unsuccessful efforts in finding employment, it would call for a certain degree of
speculation on the part of the Court to determine when she will find employment
and at what compensation.” Additionally, the court found that Jennifer, after
separation, “spent a considerable number of hours working diligently to enhance
the value of the community estate through her efforts to sell the Seattle and Vashon
homes.” The court ultimately concluded that because Jennifer “has not worked
since 2021 and has not been able to secure employment, the Court cannot
speculate that she will be able to meet her needs if required to pay spousal
maintenance.”
Substantial evidence supports the trial court’s findings regarding Jennifer’s
efforts to obtain employment and her inability to pay maintenance to Keith. After
filing for separation in July 2021, Jennifer maintained her employment with
Water.org until November 2021. Jennifer then spent several months applying and
interviewing for a position at Seattle Children’s Hospital commensurate with her
prior level of employment. Additionally, Jennifer spent considerable time and effort
caring for the marital community during dissolution proceedings. She preserved
the parties’ community property from being depleted by Keith’s excessive
spending, paid the parties’ and children’s expenses (despite Keith’s frequent
efforts to hinder her ability to pay these expenses), cared for the parties’ children
who were living with her at various times after separation, and generated hundreds
of thousands of dollars for the marital community in preparing two of the parties’
homes for sale. Jennifer also assisted Keith in obtaining medical care after he was
discharged from the hospital in December 2021.
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Keith claims the trial court “improperly refused, as speculative, to determine
[Jennifer’s] ability to earn income” in contravention of our holding in Anthony, 9
Wn. App. 2d at 566. In Anthony, we affirmed the trial court’s award of maintenance
to wife but remanded because the trial court did not make findings as to husband’s
income, despite having “real numbers,” and did not consider his ability to pay
maintenance or his needs and financial obligations under RCW 26.09.090(1)(f).
Id. at 566-68. Anthony is distinguishable because the trial court here made such
findings regarding the parties’ incomes (they were both unemployed) and
considered Jennifer’s inability to pay maintenance and her needs and financial
obligations. Moreover, neither Anthony nor any other authority cited by Keith
requires a court to impute income to an unemployed spouse for purposes of
awarding spousal maintenance to the other spouse.
7. Summary of RCW 26.09.090 factors
In sum, the trial court fairly considered the RCW 26.09.090 factors in
denying maintenance to Keith. The court found that Keith would receive a greater
share of the community property and would be left with well over $1 million to
support himself, that he could become employable again in the future, and that
Jennifer is unable to pay maintenance while also meeting her present needs.
Because these findings are supported by substantial evidence, the trial court did
not abuse its discretion in denying maintenance to Keith.
C. Child support
Keith raises several arguments relating to the trial court’s rulings regarding
child support. We review a trial court’s child support rulings for manifest abuse of
discretion. Kaplan, 4 Wn. App. 2d at 484. Notwithstanding this deferential
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standard of review, we agree with Keith that remand is necessary for the trial court
to strike the arbitration provision in the child support order and clarify other aspects
of the trial court’s child support rulings. We reject each of Keith’s remaining
arguments regarding child support.
1. Trust and 529 plans
Keith argues the trial court erred when it “found that the parties have a
community debt to their two sons creating an obligation to restore funds to the two
529 savings accounts” by creating a trust to pay for the children’s postsecondary
educational expenses. 8 We disagree.
During the marriage, the parties funded 529 plans for their children that
totaled $468,551 in 2018. In the years that followed, the parties drew funds from
the 529 plans to pay the mortgages and other expenses on their real estate after
they purchased a new house before their existing house had sold. When the
parties separated in February 2021, approximately $90,000 remained in the 529
plans. By the time of trial, B’s 529 plan had some funds remaining in it, but S’s
529 plan had been depleted. Both parties testified at trial that they desired to form
a trust to pay for their children’s postsecondary education. Jennifer asked the trial
court to order Keith to pay $170,000 into a trust for the children “because it
represents what we had intended to do before, which is to set aside funds for their
529 plan.” In response, Keith testified that he intended to establish a trust “with
8 529 plans, also known as “qualified tuition programs,” are tax-advantaged savings plans designed
to encourage parents to save money for their children’s future education expenses. See 26 U.S.C.
§ 529.
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No. 85268-0-I
[$]50,000 for each boy,” but he preferred that his trust be separate from Jennifer’s
trust.
In its final orders, the trial court ordered the parties to establish an
“Education and Health Care Trust” in the amount of $300,000. The court explained
that “[t]he funding of the trust is required because the parties used funding from
the 529 account to previously meet the expenses of three mortgages” and “[t]he
parties owe a debt to the children for removing these funds in the first place.” The
trial court further stated, “Based on the parties’ understanding and agreement
when they withdrew the funds from the sons’ 529 savings accounts, the trial court
finds that the parties have a community debt to the sons and obligation to restore
the funds to these accounts.” Lastly, the court found that establishing this trust “is
both equitable and consistent with the family’s historic priorities to restore the
funding close to what was” in the 529 plans.
On this record, the trial court did not abuse its discretion by ordering the
parties to create and fund this trust to pay for the children’s postsecondary
educational expenses. Both parties acknowledged they have an obligation to their
children to pay for some portion of the children’s education, and both parties
agreed that a trust was the proper vehicle by which to accomplish this goal. They
only disagreed on the structure of the trust and the amount of funds that should be
held in trust. The trial court’s decision to order the parties to create and fund the
trust in the manner it did was just and equitable under these circumstances. See
RCW 26.09.080 (trial court shall dispose of property and liabilities “as shall appear
just and equitable”); In re Marriage of Cota, 177 Wn. App. 527, 536, 312 P.3d 695- 21 -
No. 85268-0-I
(2013) (“The trial court has broad discretion to order support for postsecondary
education.”). 9
2. Ordering child support beyond age 23
Keith argues that the trial court abused its discretion “when it ordered
support for the adult children beyond 23.” We disagree.
“When considering whether to order support for postsecondary educational
expenses, the court shall determine whether the child is in fact dependent and is
relying upon the parents for the reasonable necessities of life.” RCW 26.19.090(2).
Trial courts have discretion to determine “whether and for how long to award
postsecondary educational support.” Id. In making this determination, the trial
court considers factors such as the “[a]ge of the child; the child’s needs; the
expectations of the parties for their children when their parents were together; the
child’s prospects, desires, aptitudes, abilities or disabilities; the nature of the
postsecondary education sought; and the parents’ level of education, standard of
living, and current and future resources. . . . [and] the amount and type of support
that the child would have been afforded if the parents had stayed together.” RCW
26.19.090(2). Additionally, the trial court “shall not order the payment of
postsecondary educational expenses beyond the child’s twenty-third birthday,
except for exceptional circumstances, such as mental, physical, or emotional
disabilities.” RCW 26.19.090(5).
9 Keith cites several cases from other jurisdictions in support of his contention that “[p]arents are
under no obligation to spend the money in a 529 Savings Plan on the educational expenses of the
children listed as the plan beneficiaries” and “absent some additional actions by the parents to
restrict the use of the 529 Savings Plan funds, those funds are solely the property of the parents.”
These cases do not change our analysis because they do not analyze Washington law, and Keith
does not explain how we should apply the legal principles derived from these cases to
Washington’s statutory framework governing the division of community property and child support.
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No. 85268-0-I
Here, the trial court made the following findings regarding postsecondary
educational support:
1. The parties’ sons, ages 20 and 22, while no longer minors,
are both attending college, and are dependent on their
parents for support.
2. [S], age 20, is in his second year at Davidson College. [B],
age 22, is enrolled in his first year at Western Washington
University.
3. Both sons have demonstrated ability and aptitude to pursue
their post-secondary education and are studying toward a
degree in their identified academic and career areas of
interest. They will require financial support from their parents.
4. Both sons have disabilities that require ongoing support . . . .
5. The court finds credible the testimony presented regarding
both sons’ special needs. [S] is on the Autism spectrum. [B]
has worked through debilitating anxiety and depression for the
past seven years and is receiving treatment for bipolar
disorder following his diagnosis last year. The court finds
these are exceptional circumstances warranting continued
support of the sons while they are pursuing their post-
secondary education after the age of 23.
6. The parents’ funding of an Education and Health Care Trust
will provide for the cost of the sons’ education and health. The
sons are still dependent on their parents for additional costs
that may not be covered by the trust. . . . [T]he parties should
each pay their proportionate share of other reasonable living
expenses for the boys until they no longer are financially
dependent not later than age 26.
7. The parties, who are both double Ivy League graduates,
expected their sons to attend college and anticipated
financially supporting them in their post-secondary education
endeavors.
These findings are supported by substantial evidence, namely Jennifer’s testimony
regarding the sons’ educational history, ability and aptitude to attain postsecondary
education, mental health issues, and the funding they require to attain
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No. 85268-0-I
postsecondary education and pay for their living expenses. 10 Because there are
“exceptional circumstances, such as mental, physical, or emotional disabilities,”
the trial court did not abuse its discretion in ordering the parties to provide
continued postsecondary educational support for the children beyond age 23.
Relatedly, Keith argues the trial court’s order erroneously “conflates support
paid to a dependent adult with postsecondary education.” This argument is
conclusory at best, as Keith does not explain the significance of any such error.
Regardless, this argument fails because none of the authorities cited by Keith
stand for the proposition that a child support order cannot encompass support for
both a “dependent adult” and “postsecondary education.” See RCW 26.19.025;
Cota, 177 Wn. App. 527; In re Marriage of Stout, 89 Wn. App. 118, 123, 948 P.2d
851 (1997); Childers v. Childers, 89 Wn.2d 592, 596-97, 575 P.2d 201 (1978). To
the contrary, the plain text of RCW 26.19.090(2), which governs postsecondary
educational support, requires that a child be “in fact dependent and . . . relying
upon the parents for the reasonable necessities of life” to receive postsecondary
educational support. Here, the court’s child support order repeatedly clarifies that
it concerns postsecondary educational support for the children. The order also
identifies several categories of “[r]easonable living expenses” that are
10 Keith argues in his brief that the trial court erred in finding that B was diagnosed with or receiving
treatment for bipolar disorder because Jennifer’s testimony about B’s bipolar diagnosis was
“inadmissible hearsay.” At oral argument, Keith took this argument a step further, claiming that
there is no admissible testimony that B was diagnosed as bipolar because “[t]he judge sustained
the objection [to this testimony] throughout the trial.” Wash. Ct. of Appeals oral argument, supra,
at 6 min., 57 sec. to 7 min., 48 sec. Contrary to Keith’s argument, Jennifer testified without objection
that B “is being treated for bipolar disorder presently, and he will continue to require therapy,
therapeutic academic tutoring and also trauma support and psychiatry.” We decline to reach
Keith’s argument that this testimony was inadmissible because it was not properly raised in the trial
court. See RAP 2.5(a) (“The appellate court may refuse to review any claim of error which was not
raised in the trial court.”).
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No. 85268-0-I
encompassed by the child support order, such as groceries, household expenses
and utilities, travel back home, school activities, cell phones, rent, vehicles,
insurance, and “[o]ther expenses as set forth in the Student Budget at the
University the child attends.” Keith’s argument regarding this alleged error thus
fails.
3. Declining to impute income to Jennifer
Keith argues the trial court erred by declining to find that Jennifer is
voluntarily unemployed such that it must impute income to her for child support
purposes. We disagree.
In calculating the child support obligation of each parent, “[t]he court shall
impute income to a parent when the parent is voluntarily unemployed or voluntarily
underemployed.” RCW 26.19.071(6). In determining whether a parent is
voluntarily unemployed, the court considers factors such as the parent’s assets,
residence, employment and earnings history, job skills, educational attainment,
literacy, health, age, employment barriers, record of seeking work, the local job
market, the availability of employers willing to hire the parent, the prevailing
earnings level in the local community, and any other relevant factors. Id.
Keith’s argument is unpersuasive for the same reasons discussed in part
II(B) above regarding Jennifer’s ability to pay spousal maintenance: Jennifer was
only unemployed for approximately one year before trial, she has attempted to find
work since separation, and she spent considerable time and effort caring for the
marital community and the parties’ children during the pendency of this case. See
Kaplan, 4 Wn. App. 2d at 485 (“Care for the community and children are ‘other
relevant factors’ that the trial court must consider in determining whether [a party]
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No. 85268-0-I
was voluntarily unemployed.”) (quoting RCW 26.19.071(6)). Thus, we conclude
that substantial evidence supports the trial court’s finding that Jennifer was not
voluntarily unemployed.
The two cases cited by Keith are unpersuasive here. First, he cites In re
Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000), for the proposition
that “[i]ncome must . . . be imputed [to a] voluntarily unemployed parent.” In
Pollard, another division of our court reversed a trial court’s reduction of the
mother’s child support obligation after she left full time employment to work “full
time as a mother and homemaker” because her choice was voluntary and
motivated by her decision to stay home and raise her children from her new
marriage. Id. at 50-51. However, in Kaplan, we recently stated that “to the extent
. . . Pollard stand[s] for the proposition that a trial court must impute income anytime
a spouse voluntarily stays home in support of the community to raise children, we
decline to follow [that] case[].” Kaplan, 4 Wn. App. 2d at 486. Moreover, Pollard
is distinguishable because Jennifer continues to seek employment.
Second, Keith cites In re Marriage of Sacco, 114 Wn.2d 1, 4, 784 P.2d 1266(1990), and argues the trial court improperly refused to determine Jennifer’s
“income if she were ‘employed at the level at which [she] is capable and qualified.’”
In Sacco, the court remanded the case for the trial court to recalculate child support
because the trial court did not use “a worksheet in the form required by the statute”
or state the “specific reasons for deviation from that worksheet.” Id. at 5. The court
rejected wife’s argument that “the inability of the trial court to ascertain [her] income
makes filling out the worksheet impossible” because the trial court “made findings
of fact imputing income to [wife]. Its doubt about the accuracy of its figures does
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No. 85268-0-I
not make filling out a schedule impossible.” Id. at 4. Keith’s reliance on Sacco is
misplaced because the trial court here did fill out a child support worksheet using
the incomes each party would receive from the interest generated from their
investment assets. Moreover, the trial court did not find that Jennifer is voluntarily
unemployed. 11
4. Keith’s ability to pay child support
Keith cites In re Marriage of Shellenberger, 80 Wn. App. 71, 82, 906 P.2d
968 (1995), and argues his child support obligation “is grossly disproportionate to
[his] ability to pay.” In Shellenberger, we remanded for a new trial where the trial
court imputed income to a disabled father and ordered him to make monthly
postsecondary educational support payments to his adult child in an amount that
exceeded the father’s income and prevented him from meeting his support
obligation for another minor child. Id. Shellenberger is distinguishable because
the trial court here did not impute income to Keith, Keith is not supporting another
child, and Keith has significant assets from which he can pay his child support
obligation while meeting his own needs. 12 Thus, we reject this argument.
11 To the extent Keith relies on Sacco to argue the trial court was obligated to determine the parties’
income for purposes of awarding spousal maintenance, this reliance is misplaced because Sacco
involved the calculation of child support, not spousal maintenance. Keith’s reliance on In re
Marriage of Jonas, 57 Wn. App. 339, 340, 788 P.2d 12 (1990), is similarly misplaced.
12 Keith also cites Shellenberger, 80 Wn. App. at 85, for the proposition that “[c]ourts must also
make findings ‘as to the cost and availability of college education in the child’s chosen field at
publicly funded institutions before ordering an objecting parent to support a more expensive private
college education.’” We decline to consider this argument because Keith provides no analysis for
how this legal principle applies to this case, such as record cites to evidence of the cost and
availability of education in the children’s chosen fields at public schools. See RAP 10.3(a)(6)
(requiring the appellant to provide an “argument in support of the issues presented for review,
together with citations to legal authority and references to relevant parts of the record”).
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No. 85268-0-I
5. Ordering Keith’s child support obligation to survive his death
Keith also asserts the trial court’s child support order erroneously “provides
[Keith’s] obligation to support his children survives death.” This argument fails
because RCW 26.09.170(3) provides, “Unless otherwise agreed in writing or
expressly provided in the decree, provisions for the support of a child are
terminated by emancipation of the child or by the death of the person required to
pay support for the child.” (Emphasis added). Here, in accordance with RCW
26.09.170(3), the child support order expressly provides that the parties’ child
support obligations “will remain an obligation of the party and will be a charge
against either party’s estate to the extent not covered by insurance or Social
Security benefits.” In support of his contrary argument, Keith cites to Cissna v.
Beaton, 2 Wn.2d 491, 98 P.2d 651 (1940), and Riser v. Riser, 7 Wn. App. 647,
501 P.2d 1069 (1972), and claims he “has a right to make testamentary disposition
of property and his duty of support terminates upon his death.” But Keith’s reliance
on these cases is misplaced because both cases predate the enactment of RCW
26.09.170(3).
6. Arbitration provision
Keith argues the trial court erred by delegating child support disputes to
binding arbitration because there is no “enforceable agreement to arbitrate” as
required by RCW 7.04A.070(1). The court’s child support order states, “Disputes
regarding categories of support that are not agreed, shall be decided in Binding
Arbitration by an agreed arbitrator.” Jennifer concedes the trial court erred in this
respect because it could not order the parties to arbitrate child support disputes in
the absence of a King County local rule providing for such relief. See RCW
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No. 85268-0-I
7.06.020(2) (providing that civil actions in which the sole relief sought is the
establishment, termination, or modification of child support payments are subject
to mandatory arbitration only “[i]f approved by a majority vote of the superior court
judges of a county which has authorized arbitration”). We accept Jennifer’s
concession and reverse and remand for the trial court to strike the arbitration
provision from the child support order.
7. Course load requirement
Keith argues we should remand for the trial court to clarify its child support
order because it “conditions [Keith’s] support obligation on the child being ‘a full-
time student’ who is ‘carrying a half-time course load,’ which is internally
inconsistent.” The court’s order states, “For a child to be eligible for assistance
from the parties under this paragraph, he must be a full-time student in an
institution of higher learning carrying a half time course load as defined by the
institution he attends, be in good standing, and provide his grades to his parents.”
As Keith correctly notes, these terms—“full-time student” and “half time course
load”—are undefined and they appear to be contradictory. 13 We therefore remand
for the trial court to clarify the requirements to receive child support while a student.
8. Duration of postsecondary educational support
Keith similarly claims that the trial court’s child support order does not
clearly state the end date for such support. In a paragraph entitled “End date for
support,” the order states that it “remains in effect for each child until that child
13 By way of example, Keith notes that a “full time” undergraduate student at Western Washington
University (where B is a student) must be enrolled in 12 credits, whereas a “half time” student need
only be enrolled in 6 credits. Credits and Class Status, Western Washington University, Registrar’s
Office, https://registrar.wwu.edu/registrationpolicies/credits-and-class-status (last visited
September 10, 2024).
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No. 85268-0-I
reaches 26 years of age or until they are no longer financially dependent.” This
suggests that a child who is financially independent—at whatever age—is not
entitled to receive child support. Yet the child support order also states, in a
paragraph entitled “Child Support,” that “[t]he parties shall pay [S] and [B’s] living
expenses in their proportional shares according to the worksheets through age
26,” which suggests that a child who is 26 years old or younger shall receive
support payments even if the child is financially independent. Because both
statements cannot be true, we remand for the trial court to clarify these provisions.
D. Property division
Keith raises several arguments regarding the trial court’s characterization,
valuation, and distribution of the marital estate. Property division in dissolution
proceedings is governed by RCW 26.09.080, which states in relevant part:
[T]he court shall, without regard to misconduct, make such
disposition of the property and the liabilities of the parties, either
community or separate, as shall appear just and equitable after
considering all relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage . . . ; and
(4) The economic circumstances of each spouse . . . at the
time the division of property is to become effective . . . .
A trial court has broad discretion to determine what is just and equitable under the
circumstances, and we review the trial court’s division of property for manifest
abuse of discretion. Kaplan, 4 Wn. App. 2d at 476-77.
We agree with Keith that the trial court erroneously assigned no value to the
parties’ membership to the STC before awarding it to Jennifer. We reverse the
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No. 85268-0-I
trial court’s decision to award no value to the STC membership and remand for the
trial court to enter findings of fact regarding the value of the STC membership and
include it among the community assets to be divided between the parties. We
reject Keith’s remaining arguments regarding the trial court’s division of property.
1. Separation date
A trial court must characterize property as either community or separate
property when distributing property in a dissolution action. In re Marriage of Kile,
186 Wn. App. 864, 875, 347 P.3d 894 (2015). Property acquired during the
marriage is presumed to be community property. RCW 26.16.030. But “[w]hen
spouses . . . are living separate and apart, their respective earnings and
accumulations shall be the separate property of each.” RCW 26.16.140.
Addressing this issue, the trial court found that the parties’ marital community
ended on February 8, 2021, when Keith moved into the Vashon Home, because
“it was clear that the physical separation . . . reflected an emotional divide,” the
parties’ communications after this date focused “upon the end of their marriage,
not preserving it,” and the parties’ conduct ultimately “exhibited a decision to
renounce the community.” Keith argues that substantial evidence does not support
that finding. We disagree.
Preliminarily, this issue appears to have been conceded. When Jennifer
filed her petition for legal separation on July 22, 2021, she asserted that the marital
community ended on February 8, 2021. Keith filed an answer in which he did not
dispute that the marital community ended on this date. That admission is binding
on Keith. See City of Oak Harbor v. St. Paul Mercury Ins. Co., 139 Wn. App. 68,
72-73, 159 P.3d 422 (2007) (where “City conceded in its trial court brief that R &
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No. 85268-0-I
R’s negligence caused the property damage in this case,” it “cannot now claim that
something else caused the . . . damage”). Because Keith cannot properly take a
contradictory position in this appeal, we reject his argument that the trial court did
not properly decide this issue.
In any event, substantial evidence supports the trial court’s determination.
February 8, 2021 is the date that Keith moved to the Vashon Island Home. When
he did so, he cleared out most of his closet at the Seattle Home and took many of
his belongings and the family’s dogs with him. While on Vashon Island, Keith told
his family they could only contact him once per day at 10 a.m., and he later told
Jennifer to stop contacting him altogether unless their marriage therapist was
present. Jennifer then told Keith and the children she would be pursuing legal
separation, and Keith told Jennifer she had a “black soul” and that he did not want
to speak to her again “for a very, very long time.” This evidence amply supports
the trial court’s finding.
Keith cites to Seizer v. Sessions, 132 Wn.2d 642, 659, 940 P.2d 261 (1997),
and argues that RCW 26.16.140 does not apply to him because he was “mentally
ill or incompetent during the separation.” In Seizer, we held that “[a]n incompetent
person’s silence cannot be enough to trigger” separation under RCW 26.16.140.
Id. Seizer is distinguishable because the abandoned spouse in that case, unlike
Keith, was declared incompetent by a court. Id. at 647. Further, the record
indicates that Keith’s mental state did not render him “silent” such that he could not
renounce the marital community.
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No. 85268-0-I
2. Predistribution of community property to Keith
Keith argues the trial court erred by “Award[ing] a Fictional Pre-Distribution
of Community Property” to him in the amount of $644,509. We disagree.
When distributing property, the court may consider “gross financial
improvidence, the squandering of marital assets,” and otherwise “negatively
productive conduct” by a party.” In re Marriage of Steadman, 63 Wn. App. 523,
528, 821 P.2d 59 (1991) (quoting In re Marriage of Clark, 13 Wn. App. 805, 808-
09, 538 P.2d 145 (1975)); see also In re Marriage of Wallace, 111 Wn. App. 697,
708-09, 45 P.3d 1131 (2002) (“In making its property distribution, the trial court
may properly consider a spouse’s waste or concealment of assets.”). Here, the
trial court made the following findings regarding Keith’s management of assets
after the date of separation:
After the date of separation – 2/8/21 – [Keith] dissipated all of the
cash he controlled. Notably, he did so against the explicit wishes of
[Jennifer]. The testimony of Mike Urban, an estate liquidator, was
credible that the spending seemed deliberate and retributive.
Specifically, Mr. Urban testified that [Keith] purchased many items
from Mr. Urban who, in his communications with [Keith], had the
impression [Keith] bought items so [Jennifer] would not have access
to these funds expended. The court finds that these funds were used
to purchase goods that solely benefitted [Keith], were purchases
[Jennifer] explicitly disapproved of, and [Keith’s] conduct did not
serve any community purpose. Thus, [Keith’s] actions in purchasing
these goods were wasteful to the marital community.
The trial court ultimately ordered that “the amount [Keith] spent, $644,509, will be
awarded to [Keith] as a pre-distribution of the community funds,” and the court
stated that it “considered this predistribution when making its just and equitable
division of the marital estate.”
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No. 85268-0-I
Substantial evidence supports the trial court’s finding that Keith’s spending
was wasteful to the marital community. Jennifer presented evidence that between
February and September 2021, Keith spent over $433,000 from the parties’ joint
account using credit cards he controlled, transferred over $154,000 from the joint
account to himself, and wrote checks totaling approximately $92,000 from the joint
account. Keith bought a truck for over $110,000, bought art totaling approximately
$40,000, and made an offer to purchase a third house. Urban testified that Keith,
after moving to Vashon Island, purchased over $111,000 in property from his store
because Keith “was in some kind of dispute with his wife” and was “putting his
money into goods so that [Jennifer] couldn’t get the money.” Urban recalled Keith
saying, “she can’t get my money if I spend it all.” While Keith claims he purchased
this property as inventory for a start-up business, the record indicates that Keith
simply purchased the property and stored it at a warehouse and in the parties’
Vashon Home without taking concrete steps toward establishing the business.
Keith admitted that he “didn’t raise any money” for the business and, “I wouldn’t
say it was a great idea.” Additionally, Keith spent over $76,000 on aesthetic
improvements to the Vashon Home that were never completed. Jennifer objected
to virtually all of this spending, and she presented ample evidence at trial tracing
Keith’s spending from the parties’ community property. The trial court did not
abuse its discretion in treating the community funds expended by Keith as a
predistribution of community property.
Keith contends that “if an expenditure is intended to benefit the community
and it does not pan out, then it is still a community expense.” This argument is
unconvincing because these expenditures were made after the marital community
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No. 85268-0-I
ended on February 8, 2021, at which time the parties began “living separate and
apart.” See RCW 26.16.140; see Aetna Life Ins. Co. v. Bunt, 110 Wn.2d 368, 372,
754 P.2d 993 (1988) (“It is the fact of community that gives rise to the community
property statute [RCW 26.16.030]; when there is no ‘community,’ there can be no
community property.”). For similar reasons, Keith’s reliance on In re Marriage of
Schweitzer, 81 Wn. App. 589, 596-98, 915 P.2d 575 (1996), is misplaced because
that case concerned whether a spouse’s disposition of community funds during the
marriage was made in the community interest. Even if Keith spent these funds
before the marital community ended, his argument fails because these
expenditures were not intended to benefit the community.
Keith further argues, “The community is owed a right of reimbursement from
Jennifer for the community funds she spent on her post-financial restraint living
expenses and attorney fees.” Keith alleges that Jennifer transferred $100,000 of
community funds into her individual account and “used that money to pay off her
credit card charges monthly as well as her attorney fees.” This argument is
unpersuasive because Jennifer was authorized by a temporary order—which was
issued after Keith began depleting the parties’ community funds and restricting
Jennifer’s access to their accounts—to “pay her living expenses and expenses that
both parties are required to pay” from this community account. 14
14 Additionally, Keith argues that Jennifer “may have deposited her severance she received in
January 2022, into her BECU accounts, transferred some of that money into her Operating
Account, and thereby commingled community and separate funds.” We decline to consider this
argument because Keith fails to support this speculative assertion with citation to the record. See
RAP 10.3(a)(6); see also In re Disciplinary Proceedings Against Whitney, 155 Wn.2d 451, 467, 120
P.3d 550 (2005) (appellate courts are not required to scour the record and construct arguments for
counsel).
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Keith next argues the trial court erred by not deducting the $86,701.64 in
severance pay he received on February 18, 2021 (after the separation date) from
his $644,509 pre-distribution of community property. This argument is
unpersuasive because the trial court’s decision was just and equitable under the
circumstances. See RCW 26.09.080. The record indicates that Jennifer deposited
as much as $129,000 of her separate property into the parties’ community
accounts, and the trial court did not credit her with these funds upon dividing the
marital estate. Jennifer also paid community expenses after separation using her
own separate funds, and the uncompensated time she spent preparing the parties’
homes for sale generated substantial income for the marital estate. We conclude
the trial court did not abuse its discretion in this respect.
3. Seattle Tennis Club membership
Before trial, the Schorschs owned a membership to the Seattle Tennis Club,
which Jennifer, Keith, and their children used for playing tennis, swimming, and
socializing with friends. In the dissolution proceeding below, Keith agreed that
Jennifer could “have the Seattle Tennis Club membership” but asserted that “the
membership’s $50,000 fair value will have to be attributed to the membership in
the overall distribution” because the trial court was “required to value all property
separate and community and characterize it in the Dissolution Decree.” The trial
court ultimately awarded the STC membership to Jennifer “at no value” and did not
classify the membership as an asset in dividing the parties’ community property.
Keith argues the trial court abused its discretion by so ruling. We agree.
Jennifer’s principal argument regarding the membership is that it has no
value because the STC prohibits members from selling their membership. While
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that fact is undisputed, it does not conclusively resolve the valuation issue in this
proceeding. Washington law requires that a dissolution court “make such
disposition of the property and liabilities of the parties.” RCW 26.09.080.
Intangible property may have a value for purposes of dividing a marital estate even
if the property cannot be sold. See In re Marriage of Luckey, 73 Wn. App. 201,
205, 868 P.2d 189 (1994) (in valuing “professional goodwill” of a business, “the
important consideration is not whether it can be sold to another party, but whether
it has value to the professional”); In re Marriage of Landauer, 95 Wn. App. 579,
590, 975 P.2d 577 (1999) (real estate burdened by restraints on alienation of
ownership may retain “utility value” even if it has no market value).
Thus, while the STC membership cannot be sold, this restriction decreases
rather than vitiates the value of the property. We therefore remand this issue to
the trial court to resolve this issue in accordance with controlling case law. In so
doing, the trial court may require additional expert testimony at its discretion. 15
E. Attorney fees for Keith’s discovery violations
Keith argues that “[t]here are insufficient facts to support a conclusion
[Keith] willfully and deliberately committed a discovery violation.” The trial court
awarded Jennifer $15,000 in fees incurred as a result of Keith’s late disclosures of
his experts’ reports and opinions and $6,200 for the time that Dr. Beaver spent
responding to them. We decline to consider Keith’s argument because it is
unsupported by any citation to the record or legal authority. See RAP 10.3(a)(6);
15 Keith also argues his “inheritance from his father identified on the property distribution
spreadsheet as a New York Schwab Account is his separate, not community, personal property.”
This argument is meritless because the trial court awarded this account to Keith as his separate
property.
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Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992) (assignment of error is waived where appellant presents no argument on
the claimed assignment). 16
F. Attorney fees for Keith’s intransigence
Keith argues the trial court’s award of $75,000 in attorney fees to Jennifer
due to his intransigence is “unsupported” because he “was not Intransigence [sic]
and the Fee Award was Excessive.” In response, Jennifer argues that Keith has
waived this argument by failing to challenge this attorney fee award below. Under
RAP 2.5(a), we “may refuse to review any claim of error which was not raised in
the trial court.” We agree with Jennifer and conclude that Keith has failed to
preserve this argument on appeal.
Before, during, and after trial, Jennifer made oral and written requests for
the trial court to order Keith to pay $75,000 in attorney fees that she unnecessarily
incurred due to Keith’s intransigence, including fees relating to (1) at least four
mediation sessions that were unsuccessful due to the Keith’s and/or his attorney’s
lack of good-faith participation, (2) filing motions for temporary orders requiring
Keith to authorize payment of the parties’ and children’s expenses from a joint
account, and (3) responding to Keith’s repetitive and unsuccessful motions to
reconsider, revise, and vacate a restraining order (which order Keith does not
challenge on appeal). Jennifer identified Keith’s actions that she alleged were
intransigent, the amount of fees she incurred in addressing those actions, and the
16 We also decline to consider Keith’s argument that the trial court, in calculating the parties’ child
support obligations, “incorrectly attributed hypothetical interest income” because Keith again fails
to cite any legal authority in support of this argument. RAP 10.3(a)(6).
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portion of the fees that should be recoverable. In its findings of fact and
conclusions of law, the trial court ordered that “[e]ach party should pay their own
fees or costs, except the husband should pay a portion of the wife’s attorney fees
for his intransigence as listed below,” and then stated the following:
1. After separation, [Keith] withheld his agreement to release
funds to pay shared expenses including for the parties’ two
sons and [Jennifer] was forced to file a motion for a temporary
order. The Court ordered [Keith] to cooperate and release the
college funds.
2. [Keith] refused to disburse 529 funds to pay tuition even
though doing so was required by the temporary order.
3. Following entry of a temporary restraining order in December
2021, [Keith] caused fees to increase by filing motions to
reconsider, revise, and vacate the order all of which were
denied.
4. [Keith] refused to provide discovery requiring [Jennifer] to file
a motion to compel resulting in an order compelling discovery.
5. [Jennifer] incurred fees in total of $245,654 prior to trial.
Based on the Amended Attorney Fee Declaration of
[Jennifer’s attorney], the Court is ordering [Keith to] pay
[Jennifer’s] fees in the amount of $75,000, which is the
amount the Court finds that [Jennifer] unnecessarily incurred
due to [Keith’s] intransigence.
Despite repeatedly acknowledging below that Jennifer sought these attorney fees
based on Keith’s intransigence and that the trial court intended to award them to
her, Keith did not file any response opposing Jennifer’s request for attorney fees
or argue at the post-trial hearings that the trial court should not award her fees due
to his intransigence. Nor did Keith challenge the trial court’s award of attorney fees
in his motion for reconsideration.
On appeal, Keith has not identified where he objected to or opposed
Jennifer’s attorney fee request below, and his reply brief does not respond to
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Jennifer’s contention that this argument is waived under RAP 2.5(a). Under these
circumstances, we conclude that Keith has waived his challenge to the trial court’s
award of attorney fees to Jennifer. See In re Marriage of Freeman, 146 Wn. App.
250, 259, 192 P.3d 369 (2008) (declining to consider attorney fee argument for the
first time on appeal). 17
III
We reverse in part and remand for further proceedings to (a) strike the
arbitration provision in the child support order, (b) clarify the educational
requirements to receive child support while a student, (c) clarify the apparent
inconsistency regarding the termination date for post-secondary educational
support, and (d) properly value the STC membership. In all other respects, we
affirm.
WE CONCUR:
17 In his reply brief, Keith raises several additional arguments regarding the trial court’s award of
attorney fees that he did not raise in his opening brief, including that the trial court “made no lodestar
analysis or other findings to support the reasonableness of the fees charged” and that “the trial
court’s findings and conclusions are not meaningful and are inadequate to affirm the fees awarded
in this case.” Similarly, Keith argues remand is necessary to clarify “ambiguities” in the court’s final
order of divorce regarding personal property. We decline to consider these arguments because
they were not raised in the opening brief. See RAP 10.3(c); Ainsworth v. Progressive Cas. Ins.
Co., 180 Wn. App. 52, 78 n.20, 322 P.3d 6 (2014) (“We will not consider issues argued for the first
time in the reply brief. The reply brief is limited to a response to the issues in the responding brief.
To address issues argued for the first time in a reply brief is unfair to the respondent and
inconsistent with the rules on appeal.”) (internal citations omitted).
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